Citation Nr: 1455125
Decision Date: 12/15/14 Archive Date: 12/24/14
DOCKET NO. 05-20 227 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUES
1. Entitlement to a disability rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to April 3, 2005, and in excess of 70 percent as of April 3, 2005.
2. Entitlement to total disability rating based on individual unemployability (TDIU) prior to April 3, 2005.
REPRESENTATION
Appellant represented by: Joseph R. Moore, Attorney at Law
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. R. Harrigan Smith, Counsel
INTRODUCTION
The Veteran served on active duty from January 1967 to June 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which increased the rating for the Veteran's service-connected PTSD to 30 percent, effective November 14, 2003.
In an April 2005 rating decision, the RO increased the rating to 50 percent, effective November 14, 2003. However, as that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In June 2007, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of this hearing is associated with the claims file. In February 2010, the Board notified the Veteran that the Veterans Law Judge who presided at his hearing was no longer employed by the Board, and advised the Veteran in writing that he had the right to another hearing by a different Veterans Law Judge. Later in February 2010, the Veteran's representative responded that the Veteran did not want another hearing with a different Veterans Law Judge, and requested that the Board proceed with adjudication of his claim based on the evidence currently of record. See 38 U.S.C.A. §§ 7102, 7107(c) (West 2002); 38 C.F.R. § 20.707 (2014).
In December 2007, the Board denied a rating for PTSD, in excess of 50 percent from November 14, 2003 through April 2, 2005; granted a rating of 70 percent from April 3, 2005 until September 26, 2005; denied a rating in excess of 50 percent from September 27, 2005 through June 13, 2007; and remanded for further development with regard to a rating in excess of 50 percent from June 13, 2007. In December 2008, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion to vacate and remand the decision to the Board.
In May 2009, the Board denied a rating for PTSD in excess of 50 percent from November 14, 2003 through April 2, 2005; denied a rating in excess of 70 percent for the period from April 3, 2005 through September 26, 2005; denied a rating in excess of 50 percent from September 27, 2005 through August 7, 2006; and remanded for further development the question of a rating in excess of 50 percent from August 8, 2006. In November 2009, the Court granted a Joint Motion to vacate and remand the decision to the Board.
In March 2010, the Board remanded this case for additional development. By an April 2014 decision, the RO awarded a 70 percent rating for the entire period beginning April 3, 2005. TDIU was also awarded effective from April 3, 2005.
FINDINGS OF FACT
1. Prior to April 3, 2005, the Veteran's PTSD was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as panic and depression; unprovoked irritability, difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships.
2. Over the entire claim period, the Veteran's PTSD was manifested by significant occupational impairment, but did not result in total social impairment; the Veteran has not exhibited symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behaviour, persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, disorientation to time or place, or memory loss for names of close relatives or his own name.
3. Prior to April 3, 2005, the Veteran's service-connected disabilities have precluded gainful employment for which his education and occupational experience would otherwise qualify him.
CONCLUSIONS OF LAW
1. The Veteran's PTSD warrants a rating of 70 percent, but no higher, throughout the entire period of the claim. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2014).
2. The criteria for award of TDIU were met prior to April 3, 2005. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 4.16(a) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id at 486.
VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
A May 2004 letter to the Veteran informed him of what was needed to substantiate his claim, the information and evidence that the VA would collect, and the information and evidence that he would be responsible for providing to the VA. In March 2006, the Veteran was provided with a letter meeting the notification requirements set out in Dingess, and the generic notification requirements still in effect under Vazquez.
VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
While the March 2006 letter was not provided to the Veteran prior to the initial unfavorable AOJ decision, the claim was readjudicated subsequent to this notice in a supplemental statement of the case issued in April 2014.
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
Post-service VA and private medical records, records from the Social Security Administration (SSA), and VA examination reports have been associated with the claims file. The Board has reviewed these records to establish if any other medical evidence relevant to the Veteran's claim exists and has determined that all relevant medical evidence has been associated with the record.
A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the introduction, the Board's December 2007 and May 2009 decisions were vacated and remanded to the Board for additional development pursuant to the Court's instructions. Ultimately, in March 2010, the Board remanded the issue of an increased disability rating for PTSD for the entire appeals period, in order to obtain additional private and VA medical records, and to provide the Veteran with a VA examination to determine the current nature and severity of his service-connected PTSD.
Current VA medical records have been associated with the record. The Veteran was sent a letter in April 2010, asking him to identify any private providers who have treated his PTSD, and to submit release forms for each. The Veteran did not respond to this letter. Finally, the Veteran was provided VA examinations in October 2010 and again in November 2012. The Board finds that these VA opinions are adequate because, as shown below, they were based upon consideration of the Veteran's pertinent medical history, interview with the Veteran, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).
For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits.
Increased Rating
Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2014).
If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2014).
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.
The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).
After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
PTSD is rated under Diagnostic Code 9411, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. The following ratings are provided for psychiatric disabilities:
Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a 50 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411.
Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, a 70 percent rating. Id.
Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, a 100 percent rating. Id.
The level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes, and not all the symptoms listed in the rating criteria must be present in order for a rating to be warranted. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that symptoms contained in rating schedule criteria are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.").
Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32. (The Board recognizes that the Veterans Benefits Administration is now required to apply concepts and principles set forth in DSM-5; however, the Secretary of VA has specifically indicated that DSM-IV is still to be applied by the Board for claims pending before it. 79 Fed. Reg. 45094 (Aug. 4, 2014).)
GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.
Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers).
GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).
VA medical records reflect that the Veteran was assigned a GAF score of 55 in February and April 2004, and January 2005. In October 2004, the Veteran reported that he felt much better emotionally, and had better coping skills. In December 2004, the Veteran reported that he was still experiencing flashbacks, nightmares, distressing memories of service, but that with his medication, he was not as jumpy, was less irritable and anxious, and had more social interactions. A February 2005 VA medical record shows that the Veteran reported that he felt stability in his mental health during this time. In April 2005, the Veteran reported that his stability had been maintained, and that he had an overall improvement of his condition.
The Veteran was afforded a VA examination in May 2004. At that time, the Veteran reported living with his wife of 12 years and their three young children. He had spent considerable time working on his house and caring for his children. He stopped going fishing for reasons he could not explain, and had one good friend but was otherwise socially withdrawn. He occasionally vacationed with his family. The Veteran reported occasional flashbacks of hallucinatory intensity and broken sleep due to nightmares. He was chronically irritable and was emotionally numb in his marriage. He took considerable pains to avoid confrontations outside the home as he was afraid of losing his temper. He had difficulty concentrating and reported sadness and some depression associated with nightmares and flashbacks. He was hypervigilant in public and socially withdrawn. The Veteran reported considerable conflict in his marriage, as he argued with his wife frequently, had little feeling for her, and admittedly remained in the marriage for the sake of the children only. He rarely socialized and had lost interest in fishing, which had been his one hobby.
The examiner found that the Veteran continued to meet the DSM-IV criteria for a diagnosis of PTSD, including re-experiencing the in-service stressors through nightmares, hallucinatory flashbacks, and intrusive thoughts and memories. He described symptoms of increased arousal, including insomnia, irritability, hypervigilance, and mildly exaggerated startle reaction. In addition, he exhibited signs of numbing and avoidance, including attempts to avoid reminders of his combat experience, emotional numbing in his marriage, was detached and alienated from his friends, and was socially withdrawn. The examiner assigned a GAF of 50, reflecting marital conflict, severe re-experiencing symptoms, insomnia, irritability, and hypervigilance. The examiner noted GAF scores of 45 to 52 over the prior year.
Rating in excess of 50 percent prior to April 3, 2005
The Board finds that, based on the evidence of record, the Veteran met the criteria for a 70 percent disability rating for PTSD prior to April 3, 2005. The evidence reflects that the Veteran experienced deficiencies in his relationships due to PTSD. While the Veteran had been married for several years, evidence during this time period reflects that the relationship was conflicted. He was socially withdrawn, able to maintain only one previously established friendship. He did not participate in any interests or hobbies due to his social isolation. The Veteran was evaluated as being chronically irritable and emotionally numb. The Veteran also experienced significant symptoms directly associated with his service-connected PTSD, including increased arousal and hypervigilance.
The Board also finds that the Veteran's PTSD resulted in occupational impairment prior to April 3, 2005. In a January 2009 opinion, a private provider opined that, due to the Veteran's service-connected PTSD and associated depression, the Veteran had been unable to work for approximately 10 years.
While the evidence reflects that the Veteran had been assigned GAF scores of 55 on a few occasions during this time period, reflecting more moderate symptoms or moderate difficulty in social, occupational, or school functioning, the predominant GAF scores were 50, reflecting serious symptoms or any serious impairment in social, occupational or school functioning, including being unable to keep a job. In fact, the VA examiner found that the Veteran's GAF scores were as low as 46 over the prior year.
As such, the Board finds that the Veteran's PTSD symptomatology more closely approximated the criteria for a 70 percent disability rating prior to April 3, 2005.
In early April 2005, the Veteran reported to the emergency room with reports of peri-oral numbness and tingling with associated sharp chest pain in the substernal area with radiation to the left jaw. He indicated that he had a flashback the prior evening and that the symptoms began the following morning. The assessment was an anxiety attack, and he was discharged as stable that same day.
The Veteran was afforded a VA examination in June 2005. He reported that he lived with his third wife and their three children. He essentially limited his time outside the house to taking his children to school activities and attending therapy at the Vet Center. He did chores and repaired the house, but had trouble describing any routine activities that he enjoyed. The Veteran did not note any substantial improvement in his mood or sleep patterns with medication. He complained significantly of depressed mood following a vivid nightmare two months prior about hand to hand combat, which resulted in chest pains and nausea. He had frequent passive suicidal ideation but denied intent or plan. He had little interest in most significant activities, and had to force himself to play with his children. He had frequent panic episodes, some near-panic or full panic attacks, accompanied by shortness of breath and sweats. He continued to report insomnia. He lost his temper frequently which caused severe strains in his marriage. He had great difficulty concentrating. He was socially withdrawn, finding it difficult to leave the house due to losing his temper or fears that his children might be in danger. At times, he patrolled his house at night with a flashlight because he was disoriented due to flashbacks. He was not able to describe any hobbies or enjoyable activities. The examiner noted that the Veteran's depressed mood and panic attacks represented a progression of his PTSD.
The examiner found that the Veteran's symptoms continued to meet the DSM-IV criteria for a diagnosis of PTSD. These symptoms included re-experiencing the in-service stressors through nightmares, psychological reactivity leading to panic attacks, and intrusive thoughts and memories. He described symptoms of increased arousal, including insomnia, irritability, hypervigilance, and impaired concentration. In addition, he exhibited signs of numbing and avoidance, including attempts to avoid reminders of his combat experience, his range of affect was restricted, a lack of interest in significant activities, little sense of the future, and estrangement from others.
The examiner assigned a GAF score of 46, reflecting panic and near-panic attacks, insomnia, estrangement from family, social withdrawal, depressed mood, suicidal ideation, hypervigilance, and impaired concentration. The examiner noted GAF scores of 42 to 48 over the prior year.
Medical records reflecting treatment from April through June 2005 show that the Veteran reported symptoms of anxiety and irritability, and that he had problems in his relationships, but that he was trying to improve his relationships with his children.
In a July 2005 letter from a provider at the Vet Center, it was noted that the Veteran had flashbacks to Vietnam that led to depression. He endorsed difficulty sleeping with nightmares and a difficult time falling back asleep. His nightmares were of such a severity that his wife slept in a separate room, due to his violent behavior while sleeping. Recurring anger had limited his emotional involvement with his current wife and children, with his relationship with his wife being "distant" and his relationship with his children considered fair. The examiner noted that the Veteran had a multitude of problems that significantly reduced the level of intimacy between him and his wife and children. His marriage appeared held together for the sake of the children. He was very concerned and caring as a father, but was not always present mentally because of intrusive thoughts of Vietnam. He reported having no friends. The Veteran experienced hypergivilance and hyperarousal. His hyperarousal was reflected in his restlessness, anxiety, social withdrawal and depression. He had sought medication to manage his symptoms of sleep disturbance, depression, and anxiety, and the examiner noted that his medication regime barely managed his PTSD symptoms. He had chronic panic attacks, frequently triggered by his nightmares. He reported that he had a panic attack shortly prior to the date of the letter that required being evaluated at an emergency room for a potential heart attack. The examiner noted that the Veteran had a phobic response to being submerged in water since an experience in Vietnam. He reported that his young children frequently pleaded with him to join them in the swimming pool or at the beach, and he always refrained.
VA medical records reflect that, in January, March and May 2006, the Veteran reported ongoing nightmares, sleep walking and bruxism. He was assigned a GAF of 55. In August 2006, the Veteran reported stability in his symptoms.
VA medical records reflecting psychiatric treatment from August 2006 to October 2007 reflect the Veteran's reports of nightmares, panic attacks, stress-induced syncope, guilt ideation, difficulty connecting with people, isolating behaviors, depression, marital strife, and anger. In January 2007, the Veteran reported stability and good support from the Babylon Vet Center. He was assigned a GAF of 55. In April 2007, the Veteran reported a very conflicted relationship with his wife, but that he was the primary caregiver for his three children. He indicated that he had one friend, but had given up fishing and did not socialize. Throughout this treatment, the Veteran was assigned a GAF score of 50 and 55. An October 2007 VA medical record shows that the Veteran had been involved in group counseling. The examiner noted that the Veteran was a well-respected and thought-provoking member of the group, and that his honesty, empathy, and intelligence were valuable to the group process. Over time, he was more willing to expose himself and his experiences, which had positively affected his peers. He was motivated for treatment, but had stopped attending due to problems at home. The Veteran was discharged from the program, with severe PTSD and depression with detrimental effects on functioning. Also in October 2007, the Veteran was experiencing nightmares, hypervigilance, intrusive memories, and guilt ideation that affected his functioning in multiple areas. The Veteran reported that he had few social contacts and no longer engaged in social activities.
A private psychiatric provider, M.N.M., RCSW, ACSW, who had treated the Veteran since 2000 submitted a letter in January 2009. The examiner noted that the Veteran was diagnosed with severe PTSD and associated depression. The Veteran suffered from recurrent nightmares, extremely impaired socialization, anxiety, irritability and anger. The examiner found that, due to his severe symptoms, the Veteran had suffered impairment in work, mood, and family relations. The examiner noted that these disabilities had made it impossible for the Veteran to work at any job in approximately 10 years. He was unemployable and had not been able to secure and follow a substantially gainful occupation by reason of his service-connected PTSD. The examiner noted that the Veteran's medication regime and counseling barely managed his PTSD symptoms.
The Veteran was provided with a VA examination in July 2009. The examiner noted that the Veteran had very difficult relationships with his family. However, the Veteran also reported that he drove his children to school functions, and helped to care for his adopted (or foster) son. The Veteran was administered a MMPI-2, which reflected invalid results and an over-reporting of symptoms. The Veteran was diagnosed with PTSD, alcohol abuse, and depression. The examiner found that it was not possible to attribute his depression and alcohol abuse with service. The Veteran reported that he was irritable, frequently depressed, and significantly socially withdrawn. He felt that his children and wife did not love him, and he sometimes wished that he were dead. He described hypnagogic hallucinations, nightmares, and frequent nocturnal wakening. He complained of relatively frequent dizzy spells and panic or near-panic attacks. However, the examiner noted that the Veteran reported passive suicidal ideation but denied intent or plan; he also denied homicidal ideation/intent/plan. The Veteran experienced irritability, lack of interest in routine activities, alienation, disturbed sleep patterns, re-experiencing the traumatic events, passive suicidal ideation. The examiner found that, because psychometric test results indicate likely over-reporting of symptoms, the Veteran's description of frequent panic attacks and significantly depressed mood must be viewed with some caution. The examiner assigned a GAF score of 49, reflecting (symptoms of PTSD) irritability, lack of interest in many routine activities, feelings of alienation, disturbed sleep patterns, re-experiencing symptoms, panic or near panic attacks; (alcohol abuse) occasional drinking to the point of intoxication, and (symptoms of MDD, recurrent) persistently depressed mood, passive suicidal ideation, anhedonia. He assigned a GAF of 45 to 51 in the past year. The examiner opined that the Veteran's PTSD symptoms, if they could be evaluated separately, would likely result in a GAF score of 55 to 60 currently and in the past year
VA medical records show that the Veteran was sent for a psychiatric evaluation in the emergency room in July 2009. He indicated that he had been having nightmares that included seeing dead bodies, and that these images carried over after he awoke. He reported that he believed that his wife and children hated him. He indicated that he felt as though he was "going crazy." Upon examination, the Veteran denied suicidal ideation or homicidal ideation, auditory and visual hallucinations, and hopelessness/helplessness. He was neatly groomed and appropriately dressed. The Veteran was anxious; however, his speech was normal, and he showed no signs of a thought disorder or perceptual disturbance. The examiner assigned a GAF of 55.
The Veteran submitted a statement dated in October 2009 by a private examiner who had reviewed the Veteran's history. The examiner found that the Veteran's PTSD had been totally disabling since 1997. He disagreed with some of the findings in the July 2009 VA examination. Specifically, he found that it was not possible to separate the Veteran's diagnoses from service. In addition, he found the Veteran to be credible in his reports of ongoing symptoms. Upon examination, the Veteran was cooperative and appropriate. His affect was significantly flat, contracted, and without usual fluctuation. His thought content was linear and logical. He was depressed and angry. He has passive suicidal ideation with no plan or intent, but no homicidal ideation. He had no psychosis and his cognition was intact. The examiner noted that the Veteran experienced intense fear, helplessness, anger, and intrusive recollections. He had recurrent dreams of the traumatic events. The examiner found that the Veteran was completely disabled from functioning in a workplace. He was nonfunctional in many aspects of his life, including the ability to engage in appropriate relationships or even simple social situations, let alone within a workplace. The examiner found his symptomatology to be chronic and severe.
VA medical records show that in April, June and the July 2010, the Veteran reported that his sleep had improved to seven to eight hours per night. The Veteran denied suicidal or homicidal ideation. He reported continuing flashbacks and varying nightmares. The examiner assigned GAF scores of 55 and 50.
The Veteran was afforded a VA examination in October 2010. The examiner offered the Veteran an opportunity to retake the MMPI-2 test, as when it was administered in July 2009, it resulted in an invalid profile and strongly suggested symptom exaggeration. The examiner noted that the Veteran became irate, and, after a prolonged period of angry shouting, declined to retake the examination. The Veteran reported that he continued to live with his wife and three teenage children, and was estranged from all of them. He indicated that he did work around the house, but that he had no hobbies and only socialized when his wife made him. The Veteran indicated that he was undergoing prolonged exposure therapy through VA, which he felt was making him more symptomatic. The examiner noted that a recent VA treatment record reflected the Veteran's reports of flashbacks and nightmares occurring depending on environmental cures, that he refused a referral to the Vet Center, and that he reported that his sleep had improved. The examiner additionally noted that the Veteran's GAF score had consistently been 50 over the prior 12 months. The Veteran's anger was limited to verbalizations; he made no threatening physical gestures. His mood was dysphoric, and his affect was congruent. He did not report suicidal or homicidal ideation or plan. His speech and thought processes were not impaired. He reported dramatic visual hallucinations, but none were evoked during the interview. Long and short-term recall were intact, and attention and concentration were adequate. He continued to report panic or near panic attacks, but did not report obsessions or phobias that interfered with normal functioning. He reported sleep disturbances, which resulted in occasional fatigue during the day. The examiner noted that, because his 2009 test results indicated likely over-reporting of symptoms and the Veteran's presentation in the interview was dramatic and possibly exaggerated, the assessment of his reportedly frequent panic attacks and depressed moods continued to be problematic. The examiner noted that, while there was no clear linkage between his reported panic attacks, military service, and episodes of syncope with his anxiety, it was impossible to evaluate these symptoms separately, because he reported them as intertwined and mutually exacerbating.
The Veteran continued to report symptoms meeting the criteria for a diagnosis of PTSD, including re-experiencing military stressor in nightmares and intrusive thoughts and memories. He also reported increased arousal symptoms, including insomnia, irritability, hypergivilance, and impaired concentration. He also reported symptoms of numbing and avoidance, including the feeling of alienation from others, restricted range of affect, and a lack of interest in significant activities.
The examiner concluded that the Veteran reported at least moderate symptoms recurring without remission since his last examination, but that, because of his unwillingness to retake the MMPI-2, and his presentation and enraged and "tortured" he could not obtain any useful information about his functioning, and an accurate of his symptomatology was impossible. The examiner assigned a GAF of 50.
In August 2012, the Veteran went to the emergency room complaining of increased insomnia, nightmares, depressed mood, and feeling overwhelmed. He reported that he had been off his medication for a week. The Veteran appeared restless and confused, and reported daily arguments with wife. The examiner noted that the Veteran required brief inpatient care to re-start meds and address his support system. While hospitalized, the Veteran identified chronic suicidal ideation, without a plan, since Vietnam, but noted that he had his kids to think about. Throughout hospital stay, Veteran was able to speak with his psychologist who noted that he did not feel the Veteran was acutely suicidal as he has never acted on these thoughts. The Veteran's psychologist noted that the Veteran had made significant progress since he first met him and was a lot better now. The Veteran had been compliant with sessions and agreed to go back on his medication. The examiner noted that the Veteran's wife was present and appeared supportive. She endorsed that Veteran has never been violent towards himself or to their family. She strongly believed that the Veteran was not a danger to himself and or others. At time of discharge, Veteran denied suicidal and homicidal ideation, reported decreased depression, denied any medication side effects, reported improved sleep without any nightmares the last two nights. He endorsed strong motivation towards discharge and appeared future oriented.
A few days following his discharge, the Veteran attended a therapy appointment with his wife, who was supportive. The discussion included the Veteran's isolation from his family and that he isolated from his family and tended to become distracted by the images in his head that recall some of his past traumatic experiences. His wife recounted experiences with him wherein he completely "ruined" events with his anger or reluctance to become involved with his family. In one situation, he had his daughter in tears when he screamed at her following her High School graduation as they drove home in the rain because of her erratic and limited driving skills.
The Veteran admitted that he understood that a solution to some of his problems in his family was to begin to listen more and to try not to let his conversations with his family escalate his anxieties to a point beyond his ability to control them.
In November 2012, the Veteran indicated that he had made several efforts to do "normal" things like swimming in the pool in the summer and going to the Supermarket with his wife to do food-shopping. Recently in a store, however, the Veteran encountered an Asian girl who reminded him of a girl he shot in Vietnam. He left the shopping cart that he was pushing, rushed to the bathroom and remained there until he settled down. By that time his wife and daughter were on the check-out line and about to leave the store.
The Veteran was afforded a VA examination in November 2012. He reported that he resided with his family, which consists of his wife and four children. The marriage was described as "not that great", noting conflicts in the relationship. He reportedly went out to dinner and other social engagements with his wife at a frequency of about once each month. He also went out with his children. The Veteran reported that he did not have any friends, but also noted that he had one friend from childhood who called him every couple of months. The veteran stated that he used to enjoy fishing, but that he lost interest in that activity. He owned a boat, but sold it because it was never used. Since retirement, he had been working on his house making repairs and modifications, and he provided support to his children, assuring that they attended various activities, such as soccer practice.
The examiner noted that the Veteran continued to meet the criteria for a DSM-IV diagnosis of PTSD. The Veteran persistently re-experienced his in-service stressor by recurrent and distressing recollections of the event, including images, thoughts or perceptions and recurrent distressing dreams of the event, physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. He exhibited persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness efforts to avoid activities, places or people that arouse recollections of the trauma, feeling of detachment or estrangement from others, restricted range of affect (e.g., unable to have loving feelings). In addition, he experienced persistent symptoms of increased arousal, including difficulty falling or staying asleep. The examiner found that these symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner noted that the Veteran experienced depressed mood, mild memory loss, and an inability to establish and maintain effective relationships. The examiner indicated in the report that the veteran's behavior was highly dramatic during the interview, exhibiting jerking movements of his body which ceased when attention was called to it. He described atypical symptoms including the image of "guts on my shirt" which he stated was a flashback from Vietnam associated with his confrontation and killing of an enemy soldier. The Veteran gave the appearance of sobbing as he described that image. He repeatedly used expletives to express his disdain for this and prior VA examinations. He reported the experience of visual hallucinations at night, habitually "securing the perimeter of my home", and other "symptoms" which he had been told brings him to be viewed "like the poster child of PTSD." His behavior after about the first ten minutes became less agitated, specifically after the examiner suggested that the interview not be conducted or be deferred. The Veteran was administered psychometric tests. He was administered a measure of recognition memory for visual material on which testing was performed immediately after presentation of the information to be learned as well as after a delay. This measure is typically performed well by those with PTSD, moderate brain injury and even persons with mild forms of dementia. However, the examiner found that the Veteran's performance was non-credibly poor. The Veteran was also administered the MMPI-2. His pattern of responding to this inventory was such that he consistently endorsed extreme items to a degree that rendered the measure invalid.
The examiner opined that, considering the data at hand, including mental status findings and psychometric results, it was his opinion that the Veteran exhibited a pattern of symptom over-reporting, which precluded him from opining beyond a level of speculation about the current GAF or about issues of employability. Thus, consistent with the DSM-IVTR, the Veteran was assigned a GAF of "0" which corresponds to the definition "Inadequate information." Likewise, the examiner did not provide an opinion as to the level of occupational and social impairment because adequate information to offer an opinion about this dimension was also unavailable.
In a February 2013 VA medical record, the Veteran expressed the fact that he has rarely felt as good as he did at that time. He indicated that his medication seemed to be helping his ability to attend counseling sessions regularly. He said that he felt much calmer and has not had a bad dream lately and even no longer saw a vision of a man he killed when in Vietnam. He made it clear, however, that he did not feel ready to discontinue treatment. He said that his "support team" has been helpful and he does not want to "mess things up." He noted that he becomes very anxious should he feel threatened with the loss of his supporters. The Veteran suggested that he might be able to be of "help" to the examiner in his treatment of other veterans. The examiner noted that the Veteran was doing well and had indicated that he was feeling better.
Rating in excess of 70 percent over the entire claim period
The Board notes that the record reflects that the Veteran has been diagnosed with PTSD and depression. The July 2009 VA examiner concluded that the Veteran's depression and past substance abuse could not be linked to service; however, the medical evidence of record does not separate the effects of his PTSD from other diagnosed psychiatric disorders. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the Board has considered all of the pertinent symptoms described in the treatment records in evaluating the Veteran's service-connected PTSD.
The Board finds that the evidence of record does not support a disability rating of 100 percent for the Veteran's PTSD. While it has been determined that the Veteran's PTSD has caused incapacity with regard occupational impairment, a 100 percent disability rating requires that the Veteran's PTSD also results in total social impairment. In this case, the evidence does show that the Veteran's service-connected psychiatric disability has caused significant difficulties in his relationships; however, the evidence does not show that his impairment in this area is total. While the Veteran has endorsed difficulties in his marriage and relationship with his children at times, he has remained married throughout the appeals period and has reported being a participant in his children's care, even taking them to and from their activities. He indicated throughout the claim period that he remained in contact with a childhood friend. The Veteran also participated in therapy in a group setting, where he was considered a valued member of the group who provided feedback and related to the other participants.
The Board notes that the Veteran was briefly hospitalized in August 2012, when he had stopped taking his medication for a week and felt suicidal. The Veteran's treating psychologist reported that the Veteran had made significant progress and did not have any true suicidal ideation. The Veteran was released and attended therapy with his wife. In November 2012, the Veteran reported participating in more in activities with his family, going out to dinner with his wife, and caring for his children. A February 2013 VA medical records reflects the Veteran's report that he rarely felt as good as he did at that time, and that he was doing well.
It is significant to note that the Veteran has not exhibited any of the symptoms typical of the criteria for a 100 percent disability rating. The medical records and examination reports show that the Veteran was alert and oriented in all spheres, and has had adequate hygiene throughout the majority of the claim period. While he has reported some thoughts of suicide on occasions, treatment records reflect that he has consistently denied any suicidal ideation. His memory and concentration have only been noted to be impaired on a few occasions, and have been normal otherwise. He has not exhibited inappropriate behavior. His thought process has been intact, his judgment and insight have been fair, and his impulse control has been good, according to copious treatment records and examination reports included in the claims file.
The medical evidence does not show that the Veteran was found to have gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, his own occupation, or his own name.
Significantly, VA examination reports dated in July 2009, October 2010, and August 2012 reflected the examiners' conclusions that the Veteran was over-reporting his symptoms. While a private physician noted that he had not found this to be the case in his examination of the Veteran, the VA examiners based their findings on standardized testing provided to the Veteran. These findings diminish the credibility of the Veteran's reported symptoms, and weigh against his claim for a higher disability rating.
The Veteran's GAF scores over the appeals period ranged between 42 and 55. To the extent that the GAF scores represent serious symptoms, including having no friends, the Board finds that the evidence of record shows that the Veteran has been able to maintain at least a few relationships. These include with his family and with a childhood friend.
As such, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 70 percent for the Veteran's PTSD at any time over the claim period.
Extraschedular Considerations
In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 3.321.
The Board finds that neither the first nor second Thun element is satisfied here. The Veteran's service-connected PTSD is manifested by signs and symptoms that are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to psychiatric disabilities are to be rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. There is nothing exceptional or unusual about the Veteran's PTSD. The rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet.App. at 115.
TDIU prior to April 3, 2005
Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2014). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a) (2014). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2014).
If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a) (2014). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 4.16(b) (2014).
The central inquiry is 'whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.' Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
For a veteran to prevail on a TDIU claim, it is necessary that the record reflect some factor which takes his or her case outside the norm of other such veterans. 38 C.F.R. §§ 4.1, 4.15 (2014). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. Therefore, the question now presented is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose, 4 Vet. App. at 363.
Here, the Veteran is service-connected for PTSD and malaria. For the period prior to April 3, 2005, his PTSD has herein been granted a 70 percent disability rating. Malaria is rated at a 0 percent disability rating. As such, the Veteran meets the percentage requirements for TDIU under 38 C.F.R. § 4.16(a).
In this case, the Board finds that the evidence of record shows that the Veteran was unable to secure and maintain gainful employment prior to April 3, 2005 due to his service-connected PTSD. The Veteran's private psychiatric provider, M.N.M., RCSW, ACSW, who had treated him since 2000, opined that the Veteran had been unable to work any job as a result of his PTSD and associated depression in approximately 10 years. In addition, the October 2009 letter from the Veteran's private physician reflects his opinion that the Veteran has been totally disabled since 1997. The Veteran's GAF scores during this time period coincide with these findings, reflecting some serious symptoms, including the inability to keep a job.
As such, the Board finds that the evidence of record warrants a grant of TDIU for the claim period prior to April 3, 2005.
ORDER
A disability rating of 70 percent PTSD prior to April 3, 2005, is granted, subject to the law and regulations governing the award of monetary benefits.
A disability rating in excess of 70 percent is denied for the entire claim period.
TDIU is granted for the claim period prior to April 3, 2005, subject to the law and regulations governing the award of monetary benefits.
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MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs